Cleveland Metropolitan Bar Ass'n v. Polke ( 2012 )

[Cite as Cleveland Metro. Bar Assn. v. Polke, 135 Ohio St.3d 121, 2012-Ohio-5852.]
CLEVELAND METROPOLITAN BAR ASSOCIATION v. POLKE.
IN RE REINSTATEMENT OF POLKE.
[Cite as Cleveland Metro. Bar Assn. v. Polke, 135 Ohio St.3d 121,
2012-Ohio-5852.]
Attorney misconduct—Multiple violations of the Disciplinary Rules—Suspension
stayed on conditions.
(Nos. 2008-1708 and 2012-0296—Submitted April 24, 2012—Decided
December 12, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 06-031.
__________________
Per Curiam.
{¶ 1} Respondent, Dennis J. Polke of Euclid, Ohio, Attorney
Registration No. 0030896, was admitted to the practice of law in Ohio in 1981. In
April 2006, relator, Cleveland Metropolitan Bar Association, charged Polke with
professional misconduct arising from his acceptance of money from clients and
failure to perform the contracted legal work. In September of that year, relator
amended its complaint to allege that Polke had engaged in professional
misconduct in his representation of two additional clients, that he was suffering
from a mental illness that might have contributed to his misconduct, and that
relator had reason to believe that his mental condition impaired his ability to
continue practicing law.
{¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline assigned to hear the matter ordered Polke to submit to a psychiatric
examination pursuant to Gov.Bar R. V(7)(C). Based on the evidence
demonstrating that Polke suffered from a mental illness that substantially
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impaired his ability to practice law, the recommendation of the panel and the full
board, and the board’s certification of the complaint pursuant to Gov.Bar R.
V(7)(B)(2) and (D), this court issued an order suspending Polke from the practice
of law.
{¶ 3} This matter is now before the court on the board’s certification that
the cause for Polke’s mental-health suspension has been removed and upon the
parties’ stipulations and the board’s findings of fact and misconduct with regard
to the underlying disciplinary complaint. Based on the reports submitted by
Polke, the independent mental-health evaluation completed at the board’s request,
and relator’s acknowledgement that Polke is no longer mentally ill, the board
recommends that Polke’s mental-illness suspension be terminated, pursuant to
Gov.Bar R. V(7)(F). But finding that as of the date of the panel hearing on the
matter, Polke had not complied with the additional requirements set forth in the
suspension order, the board stops short of recommending that Polke be permitted
to resume the practice of law.
{¶ 4} With regard to the underlying disciplinary complaint, the board
adopted the parties’ stipulations of fact and found that Polke neglected and
intentionally failed to carry out contracts of employment in six client matters,
failed to promptly deliver funds to which the client was entitled in four of those
matters, and engaged in conduct prejudicial to the administration of justice in two
of those matters. Based on these findings, the board recommends that we suspend
Polke’s license to practice law for one year, with the entire suspension stayed on
conditions.
{¶ 5} For the reasons that follow, we adopt the board’s recommendation
to terminate Polke’s mental-illness suspension and adopt the parties’ stipulated
findings of fact and misconduct. We also impose a one-year suspension of Polke’s
license to practice law, with the entire suspension stayed on conditions.
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January Term, 2012
Termination of the Mental-Health Suspension
{¶ 6} In our January 22, 2009 mental-health suspension order, we not
only found that Polke suffered from a mental illness that substantially impaired
his ability to practice law, but we also (1) taxed the cost of the proceedings to
Polke and ordered him to pay them within 90 days of the order, adding that any
amount unpaid after 90 days would accrue interest at the rate of 10 percent per
annum, (2) ordered him to complete one credit hour of continuing legal education
(“CLE”) for each month, or portion of a month, of his suspension, including one
credit hour of instruction related to professional conduct required by Gov.Bar R.
X(3)(A)(1), for each six months, or portion of six months, of the suspension, and
(3) ordered him to reimburse any amounts awarded against him by the Clients’
Security Fund within 90 days of the notice of that award.
{¶ 7} Polke applied to terminate his mental-health suspension pursuant
to Gov.Bar R. V(7)(F) in October 2010, alleging that the condition or conditions
that caused his suspension had been removed. Attached to his application were
reports from the licensed independent social worker counseling Polke, his treating
psychiatrist, and a psychologist who had evaluated him.
{¶ 8} Pursuant to the panel’s order, Polke submitted to a psychiatric
evaluation, which found that he exhibited no signs or symptoms of mental illness,
but expressed some reservations about Polke’s ability to safely resume the
practice of law without a support system to help him establish himself in the legal
community.
{¶ 9} Relator concedes that the cause for Polke’s mental-health
suspension has been removed. However, relator contends that Polke’s application
to terminate his mental-health suspension should be denied because he has not
fully complied with the conditions imposed in that suspension order. Specifically,
relator notes that Polke has not yet paid the costs of the proceeding, reimbursed
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the Clients’ Security Fund for payments made to his former clients, or completed
the CLE obligation imposed in our order.
{¶ 10} Relator acknowledges that on June 16, 2010, Polke filed a Chapter
7 notice of discharge from the United States Bankruptcy Court, Northern District
of Ohio, in this case. See In re Polke, No. 10-11391 (Bankr.N.D.Ohio 2000)
Relator argues, however, that pursuant to 11 U.S.C. 523(a)(7) and In re Bertsche,
261 B.R. 436, 437 (Bankr.S.D.Ohio 2000), his debts to this court are
nondischargeable because disciplinary proceedings are similar to criminal
proceedings and serve to protect the public. On the other hand, Polke contends
that Bertsche is not applicable to this case, because it emanates from the United
States Bankruptcy Court for the Southern District of Ohio, Western Division,
while his bankruptcy issues from the Northern District of Ohio, Eastern Division.
He further asserts that the bankruptcy court possesses original and exclusive
jurisdiction over all cases under Title 11 of the United States Code and that the
time for determining the dischargeability of his obligations to this court has
expired. Polke also contends that the CLE obligation we have imposed—and his
professed inability to finance such courses—should not be a “punishment” or
“stumbling block” preventing his reentry into the profession, but should be a tool
to guide him as he reenters the profession.
{¶ 11} Although Polke has not complied with the financial or CLE aspects
of his mental-health suspension order, it is not now necessary for us to decide the
effect of his bankruptcy proceeding on his financial obligations to this court under
his mental-health suspension order. This is true because Gov.Bar R. V(7)(F)
provides that a mental-health suspension “may be terminated on application of the
respondent to the Board and a showing of removal of the cause for the
suspension,” and Polke has sustained his burden of proof in that regard.
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January Term, 2012
{¶ 12} Therefore, we affirm the board’s determination that Polke’s
mental-health suspension should be terminated. But that does not mean that
Polke is currently eligible to be reinstated to the practice of law.
{¶ 13} In addition to the remaining conditions of reinstatement imposed in
Polke’s mental-health suspension order, we note that on June 16, 2008, we
suspended Polke from the practice of law for his failure to comply with the CLE
requirements of Gov.Bar R. X. In re Continuing Legal Edn. Suspension of Polke,
118 Ohio St.3d 1447, 2008-Ohio-2889, 888 N.E.2d 1101. The CLE requirements
imposed in Polke’s mental-health suspension order mirror the requirements of his
CLE suspension, which remains in effect. Polke has not petitioned us to
terminate that order and cites no legal authority to support his request that this
court waive the CLE conditions imposed in either his mental-health or CLE-
suspension orders based on his claims of penury. And he testified that the
Commission on Continuing Legal Education denied his request for an exemption
from his CLE obligations pursuant to Gov.Bar R. X(3)(F)(1)(b) (authorizing the
Commission on Continuing Legal Education to approve exemptions from the
CLE requirements of Gov.Bar R. X(3)(A) for an attorney suffering from severe,
prolonged illness or disability that prevents participation in accredited programs
and activities for the duration of the illness or disability). Therefore, we decline
to waive those requirements at this time.
The Underlying Disciplinary Complaint
Findings of Fact and Misconduct
{¶ 14} In its amended complaint, relator charged Polke with six counts of
misconduct for accepting retainers from six clients and failing to complete the
legal services he agreed to provide, failing to refund the unearned portion of his
fee in four of those cases, and engaging in conduct prejudicial to the
administration of justice by failing to appear at scheduled court proceedings in
two of the matters involving criminal charges against his clients. Three of the
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affected clients received awards from the Clients’ Security Fund: Gwenda Long,
who retained Polke to represent her son in a criminal matter, received an award of
$8,800 on September 4, 2009; Kevin Grimes received an award of $1,000 on
September 4, 2009; and Juliana Morton received an award of $1,000 on April 22,
2010—though Polke disputes the necessity for these awards. And one of Polke’s
colleagues refunded $500 to client Danielle Gavorski on Polke’s behalf.
{¶ 15} Based upon the stipulated facts, the parties stipulate, the board has
found, and we agree that Polke has committed six violations of DR 6-101(A)(3)
(prohibiting neglect of an entrusted legal matter) and 7-101(A)(2) (prohibiting a
lawyer from intentionally failing to carry out a contract of employment for legal
services),1 four violations of 9-102(B)(4) (requiring a lawyer to promptly pay or
deliver funds and property to which a client is entitled), and two violations of 1-
102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice).
Sanction
{¶ 16} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 17} As aggravating factors, the parties stipulate and the board has
found that Polke has a prior attorney-registration suspension, has engaged in a
1. With respect to Count I, the amended complaint alleges and the parties stipulate that Polke
intentionally failed to carry out a contract of employment for legal services with respect to Count
I, but erroneously refer to this as a violation of DR 7-101(A)(1). And with respect to Count VI,
the amended complaint alleges that Polke intentionally failed to carry out a contract of
employment for legal services, but erroneously refers to this as a violation of DR 7-101(B)(3).
The parties, however, correctly stipulate that Polke’s conduct violates DR 7-101(A)(2).
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January Term, 2012
pattern of misconduct involving multiple offenses, and has failed to make
restitution. See BCGD Proc.Reg. 10(B)(1)(a), (c), (d), and (i); In re Atty.
Registration Suspension of Polke, 107 Ohio St.3d 1431, 2005-Ohio-6408, 838
N.E.2d 671; and In re Atty. Registration Reinstatement of Polke, 108 Ohio St.3d
1428, 2006-Ohio-378, 841 N.E.2d 790. Mitigating factors present include the
absence of a dishonest or selfish motive, the absence of other certified complaints,
and Polke’s diagnosed mental disability. See BCGD Proc.Reg. 10(B)(2)(a), (b),
and (g).
{¶ 18} Based upon the aggravating and mitigating factors present, and the
duration of Polke’s mental-health suspension, the parties propose that Polke not
receive any additional sanction for his admitted misconduct. Despite the fact that
Polke’s diagnosed mental-health condition contributed to the misconduct for
which he now faces discipline, the board rejected the parties’ notion that “time
served” under his mental-health suspension will suffice. The board noted that in
addition to an attorney’s misconduct, the duties violated, the injuries caused, and
the attorney’s mental state, the sanctions imposed in similar cases and all other
relevant factors should be considered in determining the appropriate sanction for
professional misconduct.
{¶ 19} Comparing Polke’s conduct to that of the attorney in Disciplinary
Counsel v. Pfundstein, 128 Ohio St.3d 61, 2010-Ohio-6150, 941 N.E.2d 1180, the
board recommends that we suspend Polke from the practice of law for one year,
but stay the entire suspension once he meets the following conditions: (1) comply
with any CLE requirements imposed by this court, (2) pay the costs of these
proceedings, (3) reimburse the Clients’ Security Fund for all awards made to the
clients affected by his misconduct, (4) enter into a contract with the Ohio Lawyers
Assistance Program (“OLAP”) and abide by all treatment recommendations and
requirements established by OLAP, and (5) engage in no further misconduct.
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{¶ 20} In representing a single client in the collection of a legal-
malpractice judgment and litigation of an employment-discrimination claim
against the client’s former employer, Pfundstein failed to act with reasonable
diligence and promptness, failed to keep his client reasonably informed of the
status of the matters, and failed to respond promptly to his client’s reasonable
requests for information, and he thereby engaged in conduct adversely reflecting
on his fitness to practice. Id. at ¶ 6-13. The only aggravating factors present were
that Pfundstein had engaged in a pattern of misconduct and had committed
multiple offenses. Id. at ¶ 15. See also BCGD Proc.Reg. 10(B)(1)(c) and (d).
Mitigating factors, however, included the absence of a prior disciplinary record,
Pfundstein’s cooperative attitude and expressions of remorse during the
disciplinary proceedings, and evidence of his good character and reputation apart
from the charged misconduct, as demonstrated by over 20 letters attesting to his
good character, reputation, and community service during his 18 years of practice.
Id. at ¶ 16. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). Like Polke,
Pfundstein had also been diagnosed with a mental illness that contributed to cause
his misconduct. Pfundstein had undergone a sustained period of successful
treatment and was capable of returning to the competent, ethical professional
practice of law. BCGD Proc.Reg. 10(B)(2)(g).
{¶ 21} In Pfundstein, we imposed a one-year suspension and stayed it on
the conditions that Pfundstein (1) remain in compliance with his OLAP contract,
(2) comply with the treatment recommended by OLAP and his treating
psychologist, (3) serve a period of monitored probation pursuant to Gov.Bar R.
V(9) for the duration of his three-year OLAP contract, and (4) pay the costs of the
disciplinary proceedings. Although Polke’s conduct is not identical to that of
Pfundstein, it is sufficiently similar that we find our disposition in Pfundstein to
be instructive.
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{¶ 22} Accordingly, we suspend Dennis J. Polke from the practice of law
for one year, with the entire suspension stayed upon his satisfying the following
conditions: (1) rectify any existing CLE deficiency and maintain compliance with
all Gov.Bar R. X requirements, including those ordered by the court on January
22, 2009, (2) reimburse the Clients’ Security Fund for all awards made to the
clients affected by his misconduct herein or obtain a determination of
dischargeability from the appropriate bankruptcy court, (3) enter into an OLAP
contract for a duration to be determined by OLAP and comply with all treatment
recommendations, (4) serve a one-year period of monitored probation in
accordance with Gov.Bar R. V(9), (5) pay the costs associated with his mental-
health suspension as ordered by this court on January 22, 2009, or obtain a
determination of dischargeability from the appropriate bankruptcy court, and (6)
commit no further misconduct. If Polke fails to comply with the terms of the stay,
the stay will be revoked, and he will serve the full one-year suspension. Costs are
taxed to Polke.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
KENNEDY, J., not participating.
__________________
Shapero & Green, L.L.C., Brian Green, and Michael Shapero, for relator.
Dennis J. Polke, pro se.
______________________
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